Red Flags Everywhere! – Ten Risks for Directors – Week 10

Each week for the next 10 weeks, we will publish an installment of our Red Flags Everywhere! series, highlighting key risk areas that public companies and their board of directors should keep top of mind.

This series will serve as a lead up to MoFo’s upcoming Red Flags and Red Wine Tabletop program taking place in our Palo Alto office on May 7. Members of our Securities Litigation, Employment and Labor, and Capital Markets Groups will guide attendees through a ripped-from-the-headlines fact pattern designed to spark interactive discussion and practical analysis that will be valuable to every board advisor.

This week, we focus on D&O insurance and indemnification. Directors should understand how their company’s D&O insurance program is structured, what it covers (and what it does not), and the scope and limits of their indemnification and advancement rights—before a claim arises. This alert includes contributions from Lenin Lopez of Gallagher.

If you are interested in learning more about MoFo’s Red Flags Everywhere tabletop event, please reach out to Deborah Argueta. See all the Red Flags client alerts.

How D&O Policies Are Typically Structured: Sides A, B, and C

Standard D&O policies typically cover three types of losses, commonly referred to as Side A, Side B, and Side C coverage:

• Side A covers individual directors and officers directly when the company is unable or unwilling to indemnify them. This is particularly important coverage for individual directors because it responds when the company cannot stand behind them, for example, when the company is insolvent or when indemnification is legally prohibited. Side A coverage typically has no retention (i.e., no deductible), meaning the insurer pays from the first dollar of loss.
• Side B reimburses the company for amounts it pays to indemnify directors and officers. When a company advances defense costs or pays a settlement or judgment on behalf of a director, Side B reimburses the company for those expenditures. Side B coverage is subject to a retention, whereby the company bears a specified amount of loss before insurance responds.
• Side C reimburses the company for defense costs and settlements of securities claims asserted directly against the company, typically claims brought under the federal securities laws. Side C is often referred to as “entity coverage.”

Understanding the interplay among these three sides is critical. Because Sides A, B, and C typically share a single aggregate policy limit, a significant securities class action against the company (covered by Side C) can consume policy limits that would otherwise be available for directors’ personal defense costs (covered by Side A or Side B). For this reason, many companies purchase a standalone, dedicated Side A policy—sometimes called a “Side A DIC” (difference-in-conditions) policy—that provides an additional, independent layer of protection exclusively for individual directors and officers.

Retentions. A retention is often compared to a deductible, but they work a little differently. Unlike a deductible, a retention is the amount the insured must pay for losses and defense costs before the insurer is required to pay. Side A coverage for individual directors and officers typically carries no retention, so the insurer pays from the first dollar. Side B and Side C coverage, by contrast, carry a retention, which can range from modest amounts to several million dollars, depending on the company’s size, risk profile, and the other features of the D&O policy (e.g., total limits, premium) that the company obtained. The retention amount is an important economic decision: a higher retention increases the company’s out-of-pocket exposure but generally reduces premium costs.

Key Considerations When Deciding How Much Insurance You Need and Retention Size

Selecting the right amount of D&O coverage and setting the retention level are judgment calls that should be informed by several factors:

1. The company’s size. The company’s size and market capitalization are one of the most used benchmarks for D&O insurance purchasing because securities class action settlements tend to correlate with the magnitude of alleged investor losses. Larger-cap companies generally carry higher policy limits. Directors should understand how the company’s coverage compares to similarly situated peers and whether coverage levels have kept pace with the company’s growth.
2. The company’s risk profile. The nature and complexity of the company’s business, its industry, its litigation history, its stock price volatility, and recent enforcement trends all bear on the amount of coverage the company needs. Companies operating in highly regulated industries—such as financial services, healthcare, life sciences, or energy—tend to face a greater frequency and severity of claims. In addition, AI companies are experiencing a sharp increase in claim activity driven by high investor expectations and intense regulatory scrutiny. Similarly, companies undergoing significant corporate events (IPOs, mergers, restatements, or management transitions) face elevated risk.
3. The regulatory landscape. The breadth and aggressiveness of the regulatory environment in which the company operates should factor into the coverage analysis. Companies subject to oversight by multiple regulators—such as the SEC, DOJ, banking regulators, or state attorneys general—may face simultaneous investigations and enforcement actions that generate significant defense costs. Directors should consider whether the current program is designed to respond to multiple overlapping proceedings.

Evaluate the retention in light of the company’s financial position. The retention should be set at a level the company can comfortably absorb. A company with strong liquidity may benefit from a higher retention in exchange for lower premiums. But directors should consider whether the company could meet the retention obligation in a stressed financial environment, particularly in a scenario where claims coincide with financial difficulty.

Key Provisions to Look for and Understand

D&O policies contain a number of provisions that can significantly affect the scope of coverage when a claim arises. Directors should pay particular attention to the following:

• Coverage for Investigations
  
  Investigations by regulators, legislative bodies, or internal committees can generate substantial defense costs well before any formal proceeding is filed. As a general matter, modern public D&O policies will typically cover defense costs and expenses incurred by directors and officers in an SEC investigation. Unfortunately, most policies won’t provide coverage of defense costs when your company is facing an informal inquiry.
  
  Given the nuances across different policy forms, it’s worth understanding whether your company’s policy covers investigation costs, including costs incurred in responding to subpoenas, document requests, stockholder books and records demands, investigations in response to stockholder demands on the board, witness interviews, and informal inquiries. Not all policies define “claim” broadly enough to encompass pre-enforcement investigations, and some require a formal proceeding or written demand before coverage is triggered. Understanding when coverage begins—and whether it extends to informal or preliminary government inquiries—is critical, particularly in an enforcement environment where investigations can last for years and generate millions of dollars in legal fees before any formal proceeding is initiated.
• Exclusions for Insured vs. Insured Litigation
  
  Most D&O policies contain an “insured vs. insured” exclusion that bars coverage for claims brought by one insured person or entity against another. The original purpose of this exclusion was to prevent collusive lawsuits, for example, a company suing its own directors to manufacture an insurance recovery. But the exclusion can have unintended consequences. It may, for example, bar coverage when a bankruptcy trustee (standing in the shoes of the company) sues former directors, or when a special litigation committee brings claims against fellow directors. Directors should understand the scope of this exclusion and negotiate appropriate carve-outs, including for derivative suits, claims brought by a bankruptcy trustee or receiver, whistleblower claims, and employment-related claims brought by one insured against another.
• Protections in the Event of Bankruptcy
  
  When a company enters bankruptcy, D&O insurance often becomes one of the few remaining sources of protection for individual directors and officers. But bankruptcy also creates competing claims on the policy. Creditors, trustees, and litigation trusts may seek to access the same policy that directors need for their personal defense. Side A coverage, because it responds only when the company does not indemnify, becomes especially important in an insolvency scenario. For that reason, it’s worth confirming that the company carries a dedicated Side A policy or a Side A DIC policy that sits outside the primary program and cannot be reached by creditors or the bankruptcy estate. It’s also advisable to confirm whether the main Side A/B/C D&O policy contains a “priority of payments” provision, which gives individual insureds’ claims priority over entity claims when policy limits are under pressure.

Indemnification and Advancement: Basics and Limitations

D&O insurance is only one part of the director protection framework. Corporate indemnification and advancement of expenses are equally important, and in many situations, they are the first line of defense.

• The Basic Framework
  
  Director indemnification is a product of state law, corporate governance documents, and contract. Under Delaware General Corporations Code Section 145, a Delaware corporation may indemnify a director for legal expenses (including attorneys’ fees and settlements) incurred in defending a matter arising from the director’s service, provided the director “acted in good faith and in a manner the person reasonably believed to be . . . in the best interests of the corporation.” DGCL 145.
  
  Most public companies go beyond permissive indemnification and provide mandatory indemnification and advancement through their articles of incorporation or bylaws. Advancement is critically important because it ensures that directors are not forced to fund their own defense out of pocket while a case is pending.
  
  That said, bylaws that address indemnification and advancement are typically light on details regarding process, which is why directors are best served by also having an indemnification agreement that is thoughtfully constructed. For example, your indemnification agreement should specify what types of events trigger indemnification and/or a right to an advancement of expenses. This is especially important in cases when you become the subject of an investigation or claim, and you would like to (and should) engage an attorney to represent you. Any delay in wading through what should be administrative concerns at this stage could negatively impact your ability to appropriately respond to an investigation or claim.
• Delaware Law Limitations
  
  Delaware law imposes an important limit on director indemnification: a corporation may not indemnify a director who is found—by final judgment—to have acted in bad faith, or who is found to have engaged in intentional misconduct or a knowing violation of law. This limitation applies regardless of what the company’s charter, bylaws, or indemnification agreement may say. It means that even the most generous indemnification provision cannot protect a director from the financial consequences of conduct that a court determines was not undertaken in good faith. Delaware law does permit a corporation to advance costs for defense of claims alleging bad faith, but in the event there is a final determination that the director engaged in bad faith, he or she would be required to reimburse the company for the previously advanced defense costs.
  
  Additionally, directors should be aware that indemnification rights can be modified or, in some cases, restricted by subsequent board or stockholder action. Indemnification agreements that are individually negotiated and executed provide more durable protection than bylaws alone, which can be amended. For this reason, it’s important for directors to have a have a current, fully executed indemnification agreement and understand its terms.

Key Takeaways

1. Understand the structure of your D&O program. Know the difference between Side A, Side B, and Side C coverage, and confirm whether the company carries a dedicated Side A or Side A DIC policy that provides protection independent of the primary program.
2. Assess coverage adequacy regularly. Coverage needs change as the company’s risk profile, market capitalization, regulatory exposure, and business complexity evolve. Directors should evaluate the company’s insurance coverage before joining a board, and ensure that the insurance program is reviewed at least annually and adjusted as necessary.
3. Ensure legal review and market check of the D&O policy. Do not assume the policy covers every scenario. Ensure there is proper legal review by internal and external counsel of whether and to what extent investigations are covered, the provisions in the case of insolvency, and any other meaningful exclusions and carve-outs. Directors should also make sure they understand the market trends for D&O coverage. Consider inviting the broker to be part of the discussions to hear their views on coverage directly.
4. Understand your indemnification and advancement rights. Confirm that you have a current, fully executed indemnification agreement that provides for mandatory advancement of defense costs. Understand that Delaware law prohibits indemnification for bad-faith conduct—and that Side A insurance is designed to help fill that gap.
5. Do not wait for a claim to understand your protections. The time to review your D&O insurance and indemnification rights is now—not when you receive a subpoena, a demand letter, or a complaint. Directors should understand the limits of indemnification and the ways in which insurance may be able to help fill those gaps.

The prior Red Flags alerts are available here:

• Week 1: Director Oversight of AI Requires Strong Processes and Good-Faith Engagement
• Week 2: Board Engagement with Political and Social Issues Should Be Tied to Stockholder Value
• Week 3: Board Refreshment and Director Risk: Navigating Investor Demands and Delaware Constraints
• Week 4: Board Oversight of the CEO Should Be Active and Independent
• Week 5: Rule 10b5-1 Plans and Insider Trading Policies Should Be Real, Current, and Enforced
• Week 6: Board Oversight of Internal Investigations: Serious Allegations Merit Serious Oversight
• Week 7: Board Communications Can Become Evidence: Treat Email, Text, and Chat Hygiene as a Governance Issue
• Week 8: Attorney-Client Privilege in the Boardroom is Powerful, But Not Invincible
• Week 9: Board Oversight of SEC Reporting and Shareholder Disclosure Should Be Structured and Deliberate